"This is a significant point of distinction. It suggests that it would be prudent for the judge presiding over a particular tribunal to consider directing his or her fellow members that they should exercise particular care to consider the evidence on individual charges separately, unless satisfied that there was no collaboration between the several patients and that the peculiar features of one incident (if proved) lends compelling weight to the proof of another."
It was common ground between the parties in the present case that there was no question of any collaboration between Patient A and Patient B. Further the Tribunal considers that the peculiar features of the St. Vincent's Hospital incident on 18 February 2000 which it is satisfied have been proved lend compelling weight to accepting the evidence of Patient B in relation to the events which allegedly occurred at Wagga Wagga Base Hospital on 18 September 2000. Those peculiar features are:-
a. Patient A was a middle aged mature woman in hospital for a non gynaecological problem - similarly Patient B was a mature middle aged woman in hospital for a non gynaecological problem;
b. The examination of Patient A occurred in the context of menopausal issues. In this regard the issue of hormone replacement therapy and vaginal dryness was raised with respect to Patient A - similarly Patient B alleges that Dr. Rivera asked her whether she had any itching or burning in the genital area ( T.49 16 to 20). Further although Dr. Rivera denied discussing hormone replacement therapy with Patient B (T.318 46 to 55), he admitted he was present when it was discussed on Patient B's admission to hospital ( T. 318.18 to 35 and see also Patient B at T.86.30 to 87.55);
c. The relevant improper conduct in relation to Patient A took place in the course of an examination by Dr. Rivera after he had attended and examined the patient many times over the previous few days and apparently gained the confidence of such patient - similarly the improper conduct in relation to Patient B occurred in the course of an examination of such patient after Dr. Rivera had attended the patient many times over the previous few days and apparently gained her confidence;
d. No express oral consent was obtained by Dr. Rivera to the conducting of the examination of Patient A prior to its commencement - similarly no express prior oral consent was obtained prior to the commencement of the examination of Patient B;
e. Dr. Rivera touched the genitalia of Patient A with an ungloved hand - similarly he is alleged to have touched Patient B's genitalia with an ungloved hand;
f. Dr. Rivera made no note whatsoever of his examination of Patient A or his findings thereon - similarly Dr. Rivera made no note whatsoever of his examination of Patient B or his findings on such examination; and
g. Despite hospital policy there was no nurse or chaperone present when Patient A was examined by Dr. Rivera and it seems no attempt had been made prior to the examination to secure the presence of a nurse or chaperone - similarly there was no nurse or chaperone present when Patient B was examined and again no attempt seems to have been made to secure the services of a nurse or chaperone for such examination.
Furthermore Mason P in Zaidi's Case went on at page 92 to expressly adopt and apply the remarks of Mackenzie J in Purnell v Medical Board of Queeensland (15 August 1997 - unreported) as follows:
"This is a case where identification of the person who allegedly did an act is not in dispute. The issue is whether the act complained of was done. Where this is the issue proof of the commission of an act on a particular person may become more certain if other witnesses testify that a similar act has been committed on them. Provided the complaints of the similar acts are made by witnesses who are truly independent of the complainant whose testimony is in issue, in the sense that collaboration between the complainant and the other witnesses and the possibility that the other witnesses' complaints are the product of suggestibility following the witnesses becoming aware of the complainant's complaint can be ruled out, it is unlikely that the various independent accounts are a coincidence. There may be some cases where other possible explanations consistent with innocence may need consideration, as in the present case where the effects of medication upon perception is an issue. If it can be excluded, the basic proposition stated above operates. The strength of the inference will depend on the facts of the particular case. The number of complaints is not of itself critical. One similar allegation containing the same peculiar feature or features may have considerable weight in supporting a complainant's evidence. On the other hand where acts alleged do not contain any particularly unusual features but are similar, the fact that there are a number of allegations from different persons may assist in drawing an inference that the act with which the court or tribunal is concerned occurred to the required standard of proof. There is no doubt a spectrum of circumstances which require consideration on a case by case basis between those two positions.